The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Friday, August 14, 2020

Harris "birtherism" appearing, say CNN and BBC. "Racism, racism!" they scream, as does every Democrat they interview on the subject, lawyers included.

Well, not racism, and not the same as the baseless conspiracy theories about O being born in Kenya that doubtless gained currency largely because of white racism.

Instead, an accurate allusion by some conservatives to a lacuna in the settled understanding of the rarely self-explanatory US constitution and the federal law regarding US citizenship, to which Trump referred to broadcast media.

The claim is not that she wasn't born in the US but that the then immigration status of her parents makes her qualification questionable.

Similar questions, you may recall, were raised during the campaign of 2016 by some Republicans about Ted Cruz because he was born in Canada.

(John McCain was born at a naval air station in the then US Panama Canal Zone.)

Of course, this is Trump, the King of Chaos, trolling KH and the Democrats.


After a conservative law professor questioned Ms Harris' eligibility based on her parents' immigration status at the time of her birth, Mr Trump was asked about the argument at a press conference on Thursday.

The president said: "I just heard it today that she doesn't meet the requirements and by the way the lawyer that wrote that piece is a very highly qualified, very talented lawyer.

"I have no idea if that's right. I would have assumed the Democrats would have checked that out before she gets chosen to run for vice-president.

"But that's a very serious, you're saying that, they're saying that she doesn't qualify because she wasn't born in this country."

The reporter replied there was no question that Ms Harris was born in the US, simply that her parents might not have been permanent US residents at the time.

Earlier on Thursday, a Trump campaign adviser, Jenna Ellis, reposted a tweet from the head of conservative group Judicial Watch, Tim Fitton.

In that tweet, Mr Fitton questioned whether Ms Harris was "ineligible to be vice-president under the US constitution's 'citizenship clause'".

He also shared the opinion piece published in Newsweek magazine by John Eastman, a law professor at Chapman University in California, that Mr Trump was asked about.

Prof Eastman's argument, which he claims is also being made by other "commentators", hinges on the idea that Ms Harris may not have been subject to US jurisdiction if her parents were, for example, on student visas at the time of their daughter's birth in California.

"Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized US citizen at the time of Harris' birth in 1964. 

That, according to these commentators, makes her not a 'natural born citizen' - and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president."

In 2010, Prof Eastman ran to be the Republican candidate for California attorney general. He lost to Steve Cooley, who went on to be defeated by Ms Harris, the Democratic candidate, in the general election.

Following furious backlash to the Newsweek op-ed, its editor-in-chief Nancy Cooper stood by the decision to publish, arguing on Thursday that Prof Eastman's article had "nothing to do with racist birtherism" and was instead "focusing on a long-standing, somewhat arcane legal debate".

BBC and every Democratic news source are denouncing this as racist garbage, but it is true that not just everyone born here is a citizen on that account, at all.

And even generally liberal Wikipedia reports there are areas of unclarity in the law where there are competing theories about who, born here, is automatically a citizen and the Supremes have never ruled in such a way as to cover all questions.

On the other hand, if immigration authorities at the time did not require her naturalization but accepted her birthright, would a court balk now?

And, personally, I would favor a generous reading of the constitution on this matter, even allowing birthright citizenship and qualification for the presidency to children born here to illegals.

And KH's parents were not illegals, but legal immigrants not yet granted permanent residency when she was born in Oakland, reportedly.

As I have suggested more than once, it is a flaw in our constitutional arrangements that we do not have a clear account of citizenship settling all questions of eligibility and no formal authority conducting formal reviews of persons coming forward as candidates whose OK is legally necessary to even being a candidate.

<Update>
BBC just now indicated on the air the lawyer who brought up the issue in Newsweek sees daylight between being a birthright citizen under the 14th Amendment and relevant US law on the one side and being "a natural born citizen" in whatever is the sense required by Article II, Section 1
He did not question, as I took the article above to indicate, whether KH is a birthright citizen under the 14th Amendment but whether she is a natural born citizen. 
The article above cited and quoted has the two questions rather muddled. 
Cruz and McCain were not even born here but were accepted by most people as natural born.
Why really should we accept that someone who was born here and is a citizen on that account is not natural born? 
Has any court ruled on the general question?
Could anyone seek a ruling?  
I personally would have thought anyone who did not need to be naturalized is natural born.
This is Article II, Section 1. 
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States 
 </Update>

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